1. Probation from serving a sentence is an act of grace by the sentencing judge and,
unless otherwise required by law, is granted as a privilege and not as a matter of right.
The procedure to be followed when a judge acts upon a defendant's violation of a
condition of probation is set out in K.S.A. 22-3716.

2. Implicit in our statutory provisions for probation is the understanding that, unless
required by law, the court need not grant probation, but if it does so, the probationer
is entitled to retain his or her liberty as long as he or she abides by the conditions on
which probation is granted.

3. To sustain an order revoking probation on the ground that a probationer has
committed a violation of the conditions of probation, it is not necessary that the
commission of the violation be established by proof beyond a reasonable doubt.
Rather, a preponderance of the evidence is sufficient.

4. Probation revocation hearings are not criminal trials, and there are significant
differences as to a defendant's rights and the admission of evidence in a criminal trial
and a revocation hearing.

5. For the offense a probationer was convicted of, there is no privilege against
self-incrimination available to the probationer, and there is no valid claim of privilege
against self-incrimination on the ground that information sought through a polygraph
examination might be used in a subsequent probation revocation proceeding.

6. A condition of probation will not be held invalid unless it (1) has no reasonable
relationship to the crime of which the offender was convicted, (2) relates to conduct
which is not in itself criminal, and (3) requires or forbids conduct which is not
reasonably related to future criminality. Conversely, a condition of probation which
requires or forbids conduct which is not itself criminal is valid if that conduct is
reasonably related to the crime of which the defendant was convicted or to future
criminality.

7. Under certain circumstances, using the results of a defendant's polygraph examination
as a condition of probation is valid.

Review of the judgment of the Court of Appeals in 25 Kan. App. 2d 366,
963 P.2d 1238 (1998). Appeal from Sedgwick district court; DAVID W. KENNEDY,
judge. Judgment of the Court of Appeals affirming the district court is
affirmed. Judgment of the district court is affirmed. Opinion filed April
16, 1999.

Craig Durham, assistant appellate defender, argued the cause, and
Randall L. Hodgkinson, assistant appellate defender, and Jessica R. Kunen,
chief appellate defender, were with him on the briefs for appellant.

Michelle M. Sehee, assistant district attorney, argued the cause, and
Debra S. Peterson, assistant district attorney, Nola Foulston, district
attorney, and Carla J. Stovall, attorney general, were on the brief for
appellee.

The opinion of the court was delivered by

LOCKETT, J.: Defendant appeals the district court's
"resentencing" him to imprisonment for failing to pass a
polygraph test. Defendant argues that although the district
court has jurisdiction to order polygraph testing as a condition
of probation, the court could not use the results of the
polygraph test to revoke defendant's probation.

On April 4, 1996, Roy A. Lumley pled guilty to three counts
of aggravated indecent liberties and one count of criminal sodomy
of his minor daughters. At the June 11, 1996, sentencing, Lumley
requested a dispositional departure of probation. To support his
request for a departure, Lumley's attorney submitted the report
of Comprehensive Community Care of Sedgwick County, which
recommended that Lumley continue in a community-based sexual
offender treatment program under close supervision of community
corrections. Lumley's supervision during the treatment program
included a requirement that he submit to polygraph examinations.
The State did not oppose Lumley's requested departure.

The district judge imposed a sentence of 102 months'
imprisonment, then concluded that the reports and evaluations
submitted provided substantial and compelling reasons for
granting the departure requested by Lumley. The judge placed
Lumley on 60 months' probation. The district judge stated as a
condition of probation:

"Mr. Lumley will submit to a polygraph examination not less often than
every six months at his expense. He'll not have any contact with any child
less than 16 years of age, period. He'll not have contact with his daughters
until arrangements are made between his counselor and their counselor . . . .

. . . .

"Mr. Lumley will provide releases for any and all treatment he is
receiving or has received in the past, any and all medical treatment that he
has received in the past and will receive in the future."

On December 23, 1996, a warrant was issued for Lumley's
arrest. The warrant was based on a sworn allegation that
Lumley's answer to a polygraph examiner's question was untruthful
regarding contact with a child less than 16 years of age.

At the January 28, 1997, hearing on the probation violation,
Lumley's attorney moved to quash the arrest warrant as facially
invalid and violative of Lumley's due process rights. Lumley's
attorney asserted that the polygraph results were not admissible
into evidence without a prior stipulation to admissibility, and
that Lumley had not stipulated to the introduction of the
polygraph examination results.

The judge responded:

"THE COURT: So if you're telling me he's not willing to have a
polygraph [examination] be part of his probation--which is what I'm hearing
you say--I'll say fine and there won't be any probation and we'll give him
credit for time served and I'll send him to the Secretary [of Corrections].

"MR. LEHR: Umm, your Honor, I'm not saying that this court does not
have the power to enter as a condition of probation a requirement that Mr.
Lumley undergo a polygraph test to insure his compliance with the conditions
of probation. However, I have been unable to find any case in the United
States that allows for the introduction of that test at a probation violation
hearing.

"THE COURT: Where it was a condition of probation?

"MR. LEHR: As a condition to be used as part of his therapy, not as a
basis for additional evidence against him to be introduced to send him back to
prison.

"THE COURT: Oh, I'll overrule that objection.

"MR. LEHR: That's where my objection comes in.

"THE COURT: Okay, I'll find that Mr. Lumley is not willing, was not
willing to have a polygraph [examination] be part of his conditions of
probation. The court was not made aware of that. That's a fraud on the
court. Therefore, we'll go back to ground zero and we'll start over with
sentencing again."

The judge then indicated that without the polygraph
examinations and the admission of the results of the examination
as a condition of probation, the probation program recommended by
community corrections could not be maintained. The judge found
that Lumley, by claiming he had not stipulated to the admission
of the results of the polygraph examination, had perpetrated a
fraud on the court. Based on the fraud, the judge "resentenced"
Lumley to the prison term originally imposed and committed Lumley
to the Secretary of Corrections.

The Court of Appeals found that the district court's
statement that it would "start over with sentencing again" if
Lumley did not stipulate to the admission of the polygraph
results was not controlling. It noted that "[t]he substance of
the [judge's] action, rather than the label, controls our
review." 25 Kan App. 2d at 369. The Court of Appeals found that
the judge's "resentencing" of Lumley was actually a revocation of
his probation.

In reaching this determination, the Court of Appeals relied
on Andrews v. State, 11 Kan. App. 2d 322, 720 P.2d 227 (1986).
In Andrews, the district court revoked the defendant's
probation, set aside the defendant's original sentence, and then
imposed a higher sentence based on the fact that probation had
been granted based upon Andrews' misrepresentations of his
criminal history to the court. The Court of Appeals held that
the district court had no authority to set aside Andrews'
original sentence and impose a new increased sentence. The
Andrews court construed the district court's setting aside
Andrews' sentence as a probation revocation. It observed that
based upon fraudulent concealment of facts and circumstances
existing at the time probation was granted, the defendant's
probation could be summarily revoked. 11 Kan. App. 2d at 323
(quoting Swope v. Musser, 223 Kan. 133, 573 P.2d 587 [1977]).

The Court of Appeals noted that Lumley's case is factually
similar to the Andrews case. The Court of Appeals asserted that
the district court merely mischaracterized its action as a
"resentencing," and the substance of the district court's action
was actually a revocation of Lumley's probation. The Court of
Appeals observed: "'[W]hen a defendant is granted probation in
reliance upon misrepresentations made to the court by or on
behalf of the defendant, the probation may be summarily revoked
without evidence that the terms or conditions of probation have
been violated.'" Lumley, 25 Kan. App. 2d at 369 (quoting
Andrews, 11 Kan. App. 2d at 323). It found that Lumley had
misrepresented his intentions when he accepted the district
court's grant of probation; therefore, his probation could be
summarily revoked without further evidence of a violation.

The Court of Appeals focused upon Lumley's misrepresentation
to the district judge and did not determine whether a
probationer's failure of the polygraph test was sufficient for
revoking his or her probation. This court granted Lumley's
petition for review.

PROBATION

Probation from serving a sentence is an act of grace by the
sentencing judge and, unless otherwise required by law, is
granted as a privilege and not as a matter of right. State v.
Yura, 250 Kan. 198, Syl. ¶ 2, 825 P.2d 523 (1992). The procedure
to be followed when a judge acts upon a defendant's violation of
a condition of probation is set out in K.S.A. 22-3716. State v.
Freeman, 249 Kan. 768, Syl. ¶ 1, 822 P.2d 68 (1991). Implicit in
our statutory provisions for probation is the understanding that
unless required by law the court need not grant probation, but if
it does so, the probationer is entitled to retain his or her
liberty as long as he or she abides by the conditions on which
probation is granted. Musser, 223 Kan. 133, Syl. ¶ 1.To
sustain an order revoking probation on the ground that a
probationer has committed a violation of the conditions of
probation, it is not necessary that the commission of the
violation be established by proof beyond a reasonable doubt.
Rather, a preponderance of the evidence is sufficient. State v.
Rasler, 216 Kan. 292, 294-95, 532 P.2d 1077 (1975).

A review of the record reveals that the district judge
granted Lumley probation in reliance upon Lumley's representation
that he would continue in the community-based sexual offender
treatment program, which included submitting to polygraph
testing. Implicit in Lumley's acceptance of the benefit of
probation rather than a sentence of imprisonment was the
agreement that the polygraph results would be available to the
judge to determine that Lumley had complied with the conditions
of his probation.

RELIABILITY

The reliability of polygraph test results is also raised by
Lumley. We briefly address the reliability and then
admissibility of polygraph testing results in probation
revocation hearings.

The United States Supreme Court recently considered the
admissibility of polygraph evidence under the Daubert test, the
federal standard for the admissibility of scientific evidence.
The Court stated: "Although the degree of reliability of
polygraph evidence may depend upon a variety of identifiable
factors, there is simply no way to know in a particular case
whether a polygraph examiner's conclusion is accurate, because
certain doubts and uncertainties plague even the best polygraph
exams." United States v. Scheffer, 523 U.S. 303, ___, 140 L. Ed.
2d 413, 421, 118 S. Ct. 1261 (1998).

The longstanding rule in Kansas is that absent a stipulation
of the parties, the results of a polygraph examination are too
unreliable to be admissible at trial. State v. Ulland, 24 Kan.
App. 2d 249, 258-59, 943 P.2d 947, rev. denied 263 Kan. ___
(1997). The prohibition is based on the reliability of the
results in accurately measuring truthfulness or deceptiveness and
the unique role of the jury as truthfinders in court. See State
v. Webber, 260 Kan. 263, 276, 918 P.2d 609 (1996), cert. denied
__ U.S. __, 136 L. Ed. 2d 711 (1997). To obtain probation,
Lumley agreed that the results of the polygraph examination would
be used to ensure compliance with the conditions of probation.
For an in depth discussion of the use of polygraph examinations
in Kansas, see State v. Wakefield, 267 Kan. ___, ___ P.2d ___
(1999) (Case No. 80,320, filed April 16, 1999).

ADMISSION OF POLYGRAPH RESULTS AS A CONDITION OF PROBATION

Does the use of results of a probationer's polygraph
examination to monitor the probationer's conduct violate the
Fifth Amendment?

In Minnesota v. Murphy, 465 U.S. 420, 79 L. Ed. 2d 409, 104
S. Ct. 1136, reh. denied 466 U.S. 945 (1984), the United States
Supreme Court addressed the federal Constitution's Fifth
Amendment privilege against self-incrimination in the context of
a probation. In 1980, Murphy pled guilty to a sex-related charge
in a Minnesota court, was given a suspended prison sentence, and
was placed on probation. The terms of his probation required him
to participate in a treatment program for sexual offenders, to
report to his probation officer periodically, and to be truthful
with the officer "in all matters." During the course of a
meeting with his probation officer, who had previously received
information from a treatment counselor that Murphy had admitted
to a 1974 rape and murder, Murphy, upon questioning, admitted
that he had committed the rape and murder. After being indicted
for the murder, Murphy sought to suppress the confession made to
the probation officer on the ground that it was obtained in
violation of the Fifth and Fourteenth Amendments to the
Constitution. The Minnesota trial court found that Murphy was
not "in custody" at the time of the confession and that the
confession was neither compelled nor involuntary despite the
absence of Miranda warnings. The Minnesota Supreme Court
reversed, holding that, notwithstanding the lack of custody in
the usual sense, Murphy's failure to claim the Fifth Amendment
privilege against self-incrimination when he was questioned was
not fatal to his claim. Due to the nature of his meeting with
the probation officer, Murphy was under court order to respond
truthfully, and the probation officer had substantial reason to
believe that respondent's answers were likely to be
incriminating. The United States Supreme Court accepted
certiorari.

The Murphy Court observed that the Fifth and Fourteenth
Amendments did not prohibit the introduction into evidence of
Murphy's admissions to the probation officer in probationer's
subsequent murder prosecution. It pointed out that the general
obligation to appear before a probation officer and answer
questions truthfully did not, in itself, convert Murphy's
otherwise voluntary statements into compelled ones. It noted
that a witness confronted with questions that the government
should reasonably expect to elicit incriminating evidence
ordinarily must assert the Fifth Amendment privilege, rather than
answer, if the witness desires not to incriminate himself or
herself. If the witness chooses to answer rather than to assert
the privilege, his or her choice is considered to be voluntary
since the witness was free to claim the privilege and would
suffer no penalty as a result of his or her decision to do so.

The Murphy Court stated that Murphy could not claim the
benefit of the "in custody" exception to the general rule that
the Fifth Amendment privilege is not self-executing. 465 U.S. at
430. It was clear that Murphy was not in custody for purposes of
receiving Miranda protection since there was no formal arrest or
restraint on freedom of movement of the degree associated with
formal arrest.

The Court observed that a reasonably perceived threat of
revocation of probation does not render the privilege
self-executing. The legal compulsion to attend the meeting with
the probation officer and to answer truthfully the questions of
the officer who anticipated incriminating answers is
indistinguishable from that felt by any witness who is required
to appear and give testimony, and was insufficient to excuse
Murphy's failure to exercise the privilege in a timely manner.
The Court stated that whether a subjective or objective test was
applied, there was no reasonable basis for concluding that
Minnesota attempted to attach an impermissible penalty to the
exercise of the privilege. The Court held, however, that a
defendant who has been convicted and placed on probation does not
lose the protection of the constitutional privilege against
self-incrimination. For this reason, the State may not revoke,
or threaten to revoke, probation for a valid invocation of the
privilege. 465 U.S. at 435.

Murphy makes it clear that the State cannot make waiver of
the privilege against self-incrimination regarding a separate
crime a condition of probation. See State v. Gleason, 154 Vt.
205, 212, 576 A.2d 1246 (1990). However, a probationer may be
required to answer questions concerning matters relevant to
probation that pose "no realistic threat of incrimination in a
separate criminal proceeding." Murphy, 465 U.S. at 435 n.7. To
the extent the probationer has lost the privilege against
self-incrimination on offenses for which he or she has been
convicted, the probationer must answer, even if his or her
answers may be evidence of probation violations and result in
revocation.Arizona v. Eccles, 179 Ariz. 226, 228, 877 P.2d 799
(1994).

In this case, there was no violation of Lumley's Fifth
Amendment protections against self-incrimination. The polygraph
question and answer which led to Lumley's revocation referred
solely to Lumley's condition of probation that he not be alone
with children during the term of his probation. Answering the
question truthfully would not have exposed Lumley to prosecution
for another crime.

The courts of other jurisdictions are virtually unanimous in
approving the requirement of polygraph examinations as a
condition of probation. See generally Annot., Propriety of
Conditioning Probation on Defendant's Submission to Polygraph or
other Lie Detector Testing, 86 A.L.R.4th 709 (1991). Where the
jurisdictions disagree, however, is in whether the polygraph
examination results are admissible against the probationer in a
probation revocation hearing. Compare People v. Miller, 208 Cal.
App. 3d 1311, 256 Cal. Rptr. 587 (1989) (holding that an order of
probation requiring probationer to submit to polygraph testing
was not error where the results were not to be used as evidence
of a probation violation but to determine whether changes would
be necessary in the administration of the probationer's case
plan) with State v. Travis, 125 Idaho 1, 867 P.2d 234 (1994)
(holding that evidence of polygraph results was admissible in a
probation revocation hearing as a factor that the court could
consider in concluding it was appropriate to revoke the probation
of a probationer).

In Travis, the Idaho court approved the use of polygraph
results as one factor in the trial court's determination to
revoke Travis' probation. The Travis court noted that the trial
court carefully limited its consideration of the polygraph
examination. First, the trial court had weighed the evidence and
had determined that the results provided an indication that
"things may not seem as they are." 125 Idaho at 4. Second, the
trial court had not relied exclusively on the polygraph results
in revoking probation. The trial court also had considered
Travis' resistance to supervision and his uncooperativeness.

The Travis court also considered the effect of Travis'
agreement to submit to a polygraph examination as a condition of
probation on the admissibility of the results in the revocation
proceeding. The court stated: "While Travis's agreement to this
condition of his probation might not be sufficient to establish
admissibility of the examination results in all circumstances, in
the context of a probation revocation proceeding, Travis's
agreement is another factor militating in favor of allowing the
trial court to exercise its discretion in considering the results
of the examination." 125 Idaho at 5.

In Patton v. State, 580 N.E.2d 693 (Ind. App. 1992), the
Indiana court struck down a probation condition which required
Patton to stipulate in advance to the admission in any court
proceeding of polygraph results obtained from tests ordered as a
condition of his probation. The probation condition in Patton
was overbroad in that it required Patton to stipulate to the
admission of polygraph results in any subsequent court
proceeding, not just probation revocation hearings. The court
stated:

"In theory, a defendant who makes the decision to waive or stipulate to
the examination's admissibility does so after weighing the questionable
accuracy of the examination against the possible benefit to be gained from the
examination's admission. Here, however, that decision was made by the court,
not Patton. We hold it is inappropriate for a trial court to coerce a
defendant to agree to the admissibility of evidence that otherwise would be
inadmissible because it has not been found scientifically reliable. Thus, the
rehabilitative benefits of the polygraph examination condition must be
obtained without the examination results being admissible in any subsequent
court proceeding.

"We emphasize we are limiting only the unrestricted admissibility of the
polygraph examination results in any subsequent court proceeding, including a
trial on a pending or subsequent charge. We impose no impediment upon the use
of polygraph examinations as a rehabilitative tool much like the probation
condition that a probationer be truthful in responding to questions asked by
his or her probation supervisor." 580 N.E.2d at 699.

Probation revocation hearings are not criminal trials, and
there are significant differences as to a defendant's rights and
the admission of evidence in a criminal trial and a revocation
hearing. We hold that for the offense a probationer was
convicted, there is no privilege against self-incrimination
available to the probationer, and there is no valid claim of
privilege against self-incrimination on the ground that
information sought through a polygraph examination might be used
in a subsequent probation revocation proceeding.

A condition of probation will not be held invalid unless it
(1) has no reasonable relationship to the crime of which the
offender was convicted, (2) relates to conduct which is not in
itself criminal, and (3) requires or forbids conduct which is not
reasonably related to future criminality. Conversely, a
condition of probation which requires or forbids conduct which is
not itself criminal is valid if that conduct is reasonably
related to the crime of which the defendant was convicted or to
future criminality. People v. Lent, 15 Cal. 3rd 481, 486, 124
Cal. Rptr. 905, 541 P.2d 545 (1975). Proof beyond a reasonable
doubt is not required to establish a violation of a condition of
probation. Rather, a preponderance of the evidence is
sufficient. Rasler, 216 Kan. at 295.

Lumley pled guilty to a sex crime committed upon young
females. One condition of probation was that he not be alone
with young females. As indicated at sentencing, compliance with
that condition is difficult to enforce. The polygraph condition
helped to monitor compliance and was therefore reasonably related
to the defendant's criminal offense. Because this condition was
aimed at deterring and discovering criminal conduct most likely
to occur during unsupervised contact with young females, the
condition was reasonably related to future criminality. The
relaxed standard of proof and the fact that a probation
revocation decision is a judicial decision rather than a jury
decision are additional factors that strongly support a
determination that polygraph test results are sufficiently
reliable to be considered evidence in probation revocation
hearings.

Applying the stated rules for probation and revocation of
probation to the instant case, we conclude the polygraph
condition was valid.